F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

Tenth Circuit

TENTH CIRCUIT

JUL 20 2000

PATRICK FISHER
Clerk

LOUIE ARCHULETA,
Plaintiff-Appellant,
v.

No. 00-2033

FLOYD MARSHALL; ESTER

CADENA; ANTHONY DELGADO;
RUBEN ARCHULETA; JAMES
MULHERON, Sergeant; Correctional
Officers, Southern New Mexico
Correctional Facility,

(D.C. No. CIV-98-449-MV/DJS)

(D.N.M.)

Defendants-Appellees.

ORDER AND JUDGMENT

Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*

Plaintiff Louie Archuleta appeals the district courts order granting

defendants summary judgment on his claims of Eighth Amendment violations,
brought under 42 U.S.C. 1983. We exercise jurisdiction pursuant to 28 U.S.C.
1291 and affirm in part, reverse in part, and remand for further proceedings.
I.
Archuleta was incarcerated at the Southern New Mexico Correctional
Facility in Las Cruces, New Mexico, when he filed this 1983 complaint against
defendants Floyd Marshall, Ester Cadena, James Mulheron, Anthony Delgado,
Ruben Archuleta, and others on April 16, 1998. Archuleta alleged,

inter alia ,

that his Eighth Amendment rights were violated by defendants use of excessive
force. Archuleta claimed that on January 20, 1998, Marshall, Cadena, and
Mulheron attacked and beat him, resulting in bodily harm, pain, and injuries to
his right hand center finger, thumb, right ankle, and left hand center fingernail.
On April 29, 1998, Archuleta filed a second 1983 complaint, claiming,

inter

alia , that on March 4, 1998, Delgado and Ruben Archuleta attacked him, kicked
and struck him, and caused pain and permanent damage to his back, right side
hernia, left shoulder, right hand ligaments, and thumb.

The district court treated

On July 13, 1998, the district court

sua sponte dismissed Archuletas
claims of due process violations, denial of legal access, denial of medical
treatment, conspiracy, unsanitary conditions, and denial of nutritious diet. The
district court declined to exercise jurisdiction over Archuletas state law claims
(continued...)
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the two complaints as a single action.

Defendants filed a motion for summary judgment, contending they did not
use excessive force against Archuleta and Archuleta suffered no injuries from the
alleged force. Over Archuletas objection, the district court adopted the
magistrates recommendation, granted defendants motion for summary judgment,
and dismissed Archuletas complaint.
II.
We review the grant of summary judgment de novo, viewing the record in
the light most favorable to the nonmoving party.

White v. State of Colorado , 82

F.3d 364, 366 (10th Cir. 1996). Summary judgment is appropriate only if there
are no genuinely disputed material issues of fact and the moving party is entitled
to judgment as a matter of law.

Id. On appeal, Archuleta raises two issues: (1)

whether the district court applied the correct legal standard to his Eighth
Amendment excessive force claim, and (2) whether the district court failed to

(...continued)
and dismissed those claims without prejudice. The district court then dismissed
defendants the State of New Mexico, New Mexico Department of Corrections,
Jaysen Sena, Chris Barela, Jimmy Valles, Donna Simonetti, Eva (Elsie) Ramirez,
Ralph Robles, Richardo Salayandia, Rudy Ibarra, Estevan Flores, Lupe Martinez
Marshall, Ronald Lytle, and John Shanks. Archuleta does not appeal these
dismissals and has now waived any appeal of those issues.
See State Farm Fire &
Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994) (noting that failure to
raise issue in opening brief waives the point). Therefore, we affirm the district
courts dismissal of these claims and defendants.
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consider evidence that he was denied medical care.

Proper standard for Eighth Amendment excessive force claim

The magistrate recommended granting defendants motion for summary
judgment, concluding Archuleta failed to show he suffered more than de minimus
injury from defendants actions. The extent of the plaintiffs injury is not
determinative in assessing whether an Eighth Amendment violation occurred.
The inquiry for Eighth Amendment excessive force claims by convicted prisoners
is whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.
Jackson , 973 F.2d 1518, 1523 (10th Cir. 1992) (citing

Northington v.
Hudson v. McMillian , 503

U.S. 1, 6 (1992)). The malicious and sadistic requirement applies regardless

of whether the plaintiff has alleged significant physical injury, for the ultimate
constitutional inquiry is directed at whether an unnecessary and wanton infliction
of pain has occurred.

Id. (internal quotations omitted). The magistrate did not

address the alleged force or examine whether it was excessive, but based his
recommendation on the conclusion that Archuleta suffered only de minimus
injury. The district court erred in not considering the alleged force and in using
limited physical injury as the sole basis for granting summary judgment on
Archuletas Eighth Amendment excessive force claim.
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See id. (noting that

although [t]he extent of injury may be relevant in determining whether

corrections officers unnecessarily and wantonly inflicted pain, its absence does
not end the inquiry).
The magistrate also noted that 42 U.S.C. 1997e(e) requires more than de
minimus injury before Archuleta could bring the action. Section 1997e(e)
provides that [n]o Federal civil action may be brought by a prisoner confined in
a jail, prison, or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical injury. Archuleta
sought declaratory and injunctive relief, compensatory damages for physical and
emotional injuries, and punitive damages. The physical injury requirement
applies only to Archuletas emotional injury claim. The case upon which the
magistrate relied, Siglar v. Hightower , 112 F.3d 191, 193 (5th Cir. 1997),
involved an interpretation of Eighth Amendment jurisprudence as requiring more
than de minimus injury. As noted above, this circuit has not taken that approach.
Further, e ven if Archuleta failed to make the required physical injury showing
under 1997e(e), his request for declaratory and injunctive relief would remain,
and possibly his request for punitive damages.

See Perkins v. Kansas Dept of

Corrections , 165 F.3d 803, 808 & n.6 (10th Cir. 1999) (stating that 1997e(e)
does not affect actions for declaratory or injunctive relief and may not affect
punitive damages claims).
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Denial of medical care

Archuleta alleges the district court failed to consider evidence that he was
denied medical care. The district court

sua sponte dismissed Archuletas denial

of medical care claim on July 13, 1998, concluding Archuleta failed to allege a
serious medical need. Archuletas notice of appeal to this court is limited to the
magistrates proposed findings and recommended disposition of September 29,
1999, and the district courts order and judgment of January 25, 2000, neither of
which addressed the denial of medical care claims. In his reply brief, Archuleta
admits he did not raise the issue in his original lawsuit. Archuleta has not
preserved this issue for appeal.

See Fed. R. App. P. 3(c) (stating that the notice

of appeal must designate the order from which the appellant appeals);
Communications, Inc. v. Commissioner

Tele-

, 104 F.3d 1229, 1232 (10th Cir.1997)

(noting that [g]enerally, an appellate court will not consider an issue raised for
the first time on appeal).
III.
The judgment of the district court is AFFIRMED IN PART, REVERSED
IN PART, and REMANDED for further proceedings on Archuletas Eighth
Amendment excessive force claim.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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